United States v. Harrison

• Court: Court of Appeals for the Third Circuit
• Decided: February 6, 2004
• Docket: 02-4030
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

2-6-2004

USA v. Harrison Precedential or Non-Precedential: Precedential

Docket No. 02-4030

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "USA v. Harrison" (2004). 2004 Decisions. Paper 963. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/963

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Office of Federal Public Defender 1001 Liberty Avenue THE UNITED STATES COURT OF 1450 Liberty Center APPEALS FOR THE THIRD CIRCUIT Pittsburgh, PA 15222 ___________ Counsel for Appellant

No. 02-4030 ___________ Paul M. Thompson, Esq. (Argued) Bonnie R. Schlueter, Esq. UNITED STATES OF AMERICA Office of United States Attorney 700 Grant Street v. Suite 400 Pittsburgh, PA 15219 MICHAEL HENRY HARRISON, Counsel for Appellee a/k/a Emmanuel Henry Harrison, III ___________ Michael Henry Harrison, OPINION OF THE COURT Appellant ___________ ___________ NYGAARD, Circuit Judge. APPEAL FROM THE UNITED STATES DISTRICT COURT Michael Henry Harrison challenges FOR THE WESTERN DISTRICT OF the sixty-three month sentence imposed by PENNSYLVANIA the District Court for trafficking in child pornography. The single issue on appeal is (D.C. No. 01-cr-00025-1E) whether the sentencing enhancement under District Judge: United States Sentencing Guideline The Honorable Maurice B. Cohill, Jr. (“U.S.S.G.”) § 2G2.2(b)(5), for when “a ___________ computer was used for the transmission of the material or a notice or advertisement of ARGUED SEPTEM BER 3, 2003 the material,” was properly applied. For the reasons that follow, we will affirm the BEFORE: SLOVITER, NYGAARD, and application of the enhancement. ROTH, Circuit Judges. I. (Filed February 6, 2004) Harrison was indicted as a result of ___________ a sting operation aimed at traders and collectors of child pornography. He Renee Pietropaolo, Esq. (Argued) responded to the following advertisement Karen S. Gerlach, Esq. from an undercover government agent, posted on a web site geared toward those old. He offered to send a list of these interested in child pornography: videotapes, and asked Harrison if he had “anything in the way of pics/vids.” Hi, I am a discreet collector of Harrison responded: ACTION VHS Vids on the topic of pre-teens and very young teens and Hi, I am interested in seeing your I am looking for others who share list and I have a lot of pics on all my TABOO interests especially if ages from 5 to 17 mostly hardcore. you are from Pennsylvania. I am from Pa. also.

Please e-mail me at the below Harrison and the undercover agent address but you must state that you exchanged numerous other emails, in are NOT a cop, fbi, or postal or I which the undercover agent described the will NOT reply. explicit contents of the videotapes, and Harrison commented, among other things, Also, please state that you saw this “Hope you’re not a cop LoL!” and post in YAHOO WILD AND suggested that “Perhaps we could meet ACTIVE PRE-TEENS so I know someday with some little playmates.” your reply is legit. Eventually, the two men arranged a trade: Harrison agreed to mail computer disks Please no flamers, trolls or fantasy with at least 150 pornographic pictures to trippers. the undercover agent, and in return, the agent agreed to mail Harrison three At the bottom of this advertisement was videotapes entitled “Bath Time,” the email address used by the undercover “Doctor’s Appointment,” and “Incest agent. Harrison responded with the Family.” The undercover agent received following message: four computer disks from Harrison in the mail, each containing explicit pictures of Hi, I am a 45 year old male living underage boys and girls engaging in sexual in NW PA. I saw your post in conduct. The three videotapes were Active pre teens and want to write. subsequently conveyed to Harrison in a I am not a cop, fbi or postal angent controlled delivery. (sic.) and don’t much care for them. I am very interested and turned on Government agents executed a search by young teen and pre teens. Mike. warrant on Harrison’s house moments after this delivery, seizing the videotapes The undercover agent responded and Harrison’s computer, which contained the next day with a message indicating that numerous pornographic pictures and video he possessed sexually explicit videotapes images of children. While the search was featuring children as young as eight years being executed, Harrison agreed to speak

2 to the agents. He told them he had been verbally accepted the portion of the plea collecting child pornography for about agreement under which he acknowledged seven months by downloading it onto his responsibility for the conduct charged in computer from various Internet sites, but counts two and three. that this was the first time he had traded pornography. He admitted he had The maximum sentence under 18 downloaded the explicit pictures that he U.S.C. § 2252(a)(2) is fifteen years, and later copied onto disks and mailed to the the base offense level is seventeen. The undercover agent. He said he collected District Court used an offense level of child pornography because he was “just twenty-five, which included eleven levels curious,” and denied ever having sexual of enhancement and a three-level reduction involvement with a child. for acceptance of responsibility. Together with a criminal history category of II, this A grand jury indicted Harrison on yielded a a guideline range of sixty-three three counts. Count one charged him with to seventy-eight months imprisonment. transporting child pornography in violation The Court sentenced Harrison at the of 18 U.S.C. § 2252(a)(1), while counts bottom of this range: sixty-three months in two and three, respectively, charged him prison, to be followed by three years of with receiving child pornography in supervision. violation of 18 U.S.C. § 2252(a)(2) and possessing child pornography in violation The only issue is the District Court’s of 18 U.S.C. § 2252(a)(4)(B). Harrison application of § 2G2.2(b)(5), which agreed to plead guilty to count one under a provides for a two-level enhancement if “a plea agreement which dismissed counts computer was used for the transmission of two and three. The plea agreement further the material or a notice or advertisement of stipulated that Harrison “acknowledges his the material.” Before the District Court’s responsibility for the conduct charged in decision to apply the enhancement, both Counts Two and Three of the Indictment” parties presented briefs and oral argument and “that the conduct charged in those on the issue. counts may be considered by the Probation Office or by the District Court in imposing II. sentence.” Under 18 U.S.C. §§ 3742(a)(1) and In the plea colloquy, the District (a)(2), this Court has jurisdiction to review Court asked Harrison if he was admitting sentences imposed in violation of the law to the transportation of child pornography or as the result of an incorrect application that had been “obtained through the use of of the sentencing guidelines. This Court a computer and shipped by way of the reviews a district court’s interpretation of United States mail.” Harrison indicated the sentencing guidelines de novo, and a that he admitted this charge, and also district court’s findings of fact supporting

3 application of the guidelines for clear The Seventh Circuit Court of Appeals error. See United States v. Butch, 256 F.3d took a simila r approach to the 171, 177 (3d Cir. 2001). This Court also interpretation of § 2G2.2(b)(5) in United reviews for plain error a district court’s States v. Richardson, 238 F.3d 837 (7th determination of what constitutes relevant Cir. 2001). In Richardson, the defendant conduct for the purposes of sentencing. pleaded guilty to receiving and possessing See United States v. Perez, 280 F.3d 318, child pornography in violation of 18 352-54 (3d Cir. 2002). U.S.C. §§ 2252 (a)(2) and (a)(4), admitting that he had downloaded more than 70,000 It is important to note at the outset pornographic images from the Internet. In of this analysis that the language of § holding that the enhancement under § 2G2.2(b)(5) is phrased in the passive 2G2.2(b)(5) should apply, the court voice. It does not say, as does a similar examined the structure of the sentencing e n h a n c e m e n t u n de r U .S .S .G . § guidelines in regard to the child 2G2.4(b)(3), that the sentence shall be pornography statutes, and observed that enhanced because of “the defendant’s use they seemed intended to impose the same of a computer.” (emphasis added). Instead, punishment for receiving and sending § 2G2.2(b)(5) applies if “a computer was pornography: used for the transmission of the material” (emphasis added). The enhancement Use of the Internet enhances the therefore applies whether the defendant dangers that child pornography uses a computer to transmit “the material” poses, because it is a more discreet to someone else, or someone else uses a and effic ient method of computer to transmit “the material” to the distribution; but if this makes the defendant. In other words, in the language sender more dangerous, it likewise of § 2G2.2(b)(5), “transmission” covers makes the receiver more dangerous. both the sending and the receiving of A market has two sides, supply and pornographic material, so if the defendant demand; without both, the market received child pornography by means of a collapses. The senders of child computer, the enhancement is applicable. pornography supp ly it; the This interpretation is consistent with the demanders receive it. The guideline intent evident throughout the sentencing is acknowledged to treat both sides guidelines for offenses involving child of the market symmetrically when pornography, which apply the same any method of transmission other penalties for receiving pornography as for than the Internet is used; it would sending it – for example, all of the make no sense to treat them enhancements under § 2G2.2 apply equally differently when the more ominous to defendants guilty of “receiving, method is used. t r a n sp o r t in g o r s h i p p in g ” c h i ld pornography. Richardson, 238 F.3d at 842.

4 Based on this reasoning, the solicitation. . . . Under the Richardson court concluded that guideline, those who seek out and “‘computer . . . used for the transmission’ respond to notice and in section 2G2.2(b)(5) of the sentencing advertisement of such materials are guidelines does not mean, as the defendant as culpable as those who initially argues, ‘computer . . . used by the send out the notic e and defendant for the transmission’.” Id. at advertisement. 841. On the contrary, the court found it Id. at 259-60. clear that the language of the guideline was intended to cover receiving as well as The Eighth Circuit Court of sending, and affirmed the application of Appeals made a similar finding in United the enhancement to Richardson, who States v. Stulock, 308 F.3d 922 (8th Cir. pleaded guilty to receiving pornographic 2002), in which the court affirmed the images. application of the § 2 G2.2(b )(5) enhancement to a defendant who had seen Each of the other circuits that has an advertisement for a pornographic addressed this issue has followed the lead videotape on the Internet, and then ordered of the Seventh Circuit, in finding that § and received the tape by mail. The Stulock 2G2.2(b)(5) applies to receiving as well as court reviewed with approval the sending. In United States v. Dotson, 324 reasoning employed in Richardson, F.3d 256 (4th Cir. 2003), the Fourth finding that the intent of the guidelines Circuit Court of Appeals held that the was fulfilled by punishing receivers with computer enhancement was applicable to the same severity as senders. Id. at 925. a defendant who responded to an The Sixth Circuit Court of Appeals advertisement for child pornography likewise condoned the conclusions of the posted on the Internet. The court found the Richardson court in United States v. Boyd, guideline’s use of the passive voice 312 F.3d 213 (6th Cir. 2002), in which it significant: approved the imposition of the enhancement on a defendant convicted of Had the Sentencing Commission receiving child pornography through his intended to limit the scope of the computer. enhancement to defendants who forwarded notices or The facts in this case are not in advertisements, it could have easily dispute. Harrison pleaded guilty to done so by referring to the transporting through the mail visual defendant in the text of the depictions of minors engaging in sexually guideline. . . . In wording the explicit conduct, “such visual depictions guideline as it did, the Commission having been obtained through the use of a addressed not only the solicitor, but computer.” Harrison told a federal agent also the recipient of such that he had downloaded some of the

5 specific pictures which he later sent to the computer.2 Therefore, Harrison argues, the undercover federal investigator. During the source of the pornographic pictures can sentencing hearing, Harrison’s attorney only be considered if it qualifies as admitted that Harrison downloaded “relevant conduct” under U.S.S.G. § pornographic images onto his computer, 1B1.3. copied them onto disks, and later mailed them to the federal agent. 1 Based on these This interpretation of the guidelines facts, we find it clear that “a computer was is absurd. There is nothing illegal about used for the transmission of the material” sending computer disks through the mail – and that the District Court properly applied Harrison’s crime was the transmission of § 2G2.2(b)(5). the pornographic images contained on those disks, not the disks themselves. The Harrison attempts to sidestep the direct heading of § 2G2.2(b)(5) reinforces this application of the guidelines by defining obvious reading, since it applies to “the material” as the computer disks sent trafficking “in material involving the to the undercover agent, rather than the sexual exploitation of a minor.” The words pornographic material contained on those “the material” found later in the guideline computer disks. By this reasoning, a refer back to this heading, and thus “the computer had not been used to transmit material” means “the material involving “the material,” because “the material” sexual exploitation of a minor.” encompasses only the computer disks themselves, which were unquestionably In Harrison’s case, “the material” sent through the mail and not via a means the pornographic images contained on the computer disks, and he does not dispute that these images were transmitted to him using a computer. In fact, the count 1. Harrison’s attorney does not dispute that the images Harrison sent through the mail had, at some point, been 2. Harrison’s attorney conceded downloaded using his computer. During during oral argument before this Court argument before the District Court, that § 2G2.2(b)(5) would apply if he had Harrison’s attorney conceded that: been convicted of possession of child “[E]veryone agrees that he obtained pornography, but argued that it did not some of these images from downloading apply because that charge had been them from the Internet, that he put those dropped. Since possession of on disks, mailed them to the undercover pornography is an integral part of the agent, and in return had the three video ability to traffic in pornography, and thus tapes mailed to him.” Harrison’s attorney incorporated as part of Harrison’s made a similar concession in oral offense of conviction, we do not find this argument before this Court. distinction compelling.

6 to which Harrison pleaded g uilty accepted responsibility for this conduct, specifically alleged that the images he sent and we have recognized that a sentencing to the undercover agent had been enhancement, and even a departure from downloaded from the Internet. Further, the the guidelines, can be applied based on language of § 2G2.2(b)(5) is specifically conduct alleged in counts that were targeted toward “the material” and not “the dismissed as result of a plea agreement. offense,” as are other portions of § 2G2.2. See United States v. Baird, 109 F.3d 856, The application of the enhancement, 864 (3d Cir. 1997). Although this conduct therefore, does not hinge on whether the must be in some way “related” to the defendant used a computer to commit “the offense conduct, it need not fit into the offense” for which he was convicted. guidelines’ definition of relevant conduct Instead, the enhancement hinges on “the found in § 1B1.3. Id. at 865. material” implicated in the offense, and whether this material had at some point In order to be “related” to the been transmitted using a computer. There offense, “the acts in question must exhibit is no dispute that “the material” in this commonalities of factors sufficient to case had been so transmitted, and as a allow for a reasonable grouping of the result, § 2G2.2(b)(5) is applicable. separate, individual acts into a larger, descriptive whole. . . . [T]he similarities of The District Court encourages the acts must arise from the character or Harrison’s foray into the realm of relevant type of the acts.” Id. Certainly, the conduct conduct by appearing to base its decision involved in receiving child pornography, to grant the § 2G2.2(b)(5) enhancement on as charged in count two, is closely related the conduct detailed in counts two and in character to the charge to which three, which were dropped by the Harrison pleaded guilty – especially since prosecution, but for which Harrison receiving pornographic images over the accepted responsibility in the plea computer was an essential precursor to agreement. The Court need not have taken later trading those images for pornographic this extra step, since the conduct necessary videotapes. The District Court was for the enhancement had been specified in therefore correct in its finding that this the text of the count to which Harrison related conduct justified the application of pleaded guilty, and thus made an integral the § 2G2.2(b)(5) enhancement, and no part of the offense of conviction. The extra discussion of relevant conduct under § step taken by the District Court, however, 1B1.3 is necessary. takes us to the same place. Harrison contends that downloading the First of all, it was entirely pornography is not related conduct, appropriate for the District Court to because he downloaded the pictures well consider the conduct alleged in the before he made an agreement to trade dismissed counts. Harrison explicitly

7 them.3 In any case, the temporal in the application of § 2G2.2(b)(5). The relationship between the two actions is not guideline applies no matter who used the decisive. If Harrison had not downloaded computer for transmission – the defendant the images, he could not have trafficked in or another party – but it does not apply if a them, and the two actions are therefore computer was used in a way which is not closely tied. “transmission,” for example to help create, alter, or copy pornography. Harrison further contends that to apply the guideline in his case would be to Harrison also contends that the cause it to lose all its meaning, and turn it application of the “transmission” into an enhancement that applies whenever enhancement to his case would obliterate the defendant used a computer in some the distinction between “transmission” and way related to the pornography, a role “distribution,” the word used in § already filled by U.S.S.G. § 2G2.4(b)(3). 2G2.2(2)(A-E). The enhancements for This argument ignores the fact that under distribution are not limited by any our interpretation, the requirement that a particular method of distribution, however, computer be used for “transmission” of the while “transmission” is specifically pornography still plays an important role qualified by the requirement that it be by a computer. The sections therefore serve distinct purposes: § 2G2.2(b)(5) punishes a specific method of transmission – by 3. Since Harrison told police he computer – while § 2G2.2 (2)(A-E) had only been downloading child addresses other forms of distribution. pornography for about seven months Under these guidelines, handing out before his arrest, the time lapse between p o r n o g raphic l ea fl et s w o u l d b e his downloading of the material and his “distribu tion ,” but cle arly not a use of it to barter can not have been that “transmission” by computer. great – especially because it was nearly three months from the time Harrison first III. made contact with the undercover agent to the time of his interview with police. The enhancement under § 2G2.2(b)(5) Harrison’s attorney asserted at is also applicable to Harrison’s conduct oral argument that the holding we make because he used his computer to transmit today would mean that the § 2G2.2(b)(5) a “notice” of child pornography. The enhancement would apply to a defendant transportation of child pornography to convicted of trafficking in pornography which Harrison pleaded guilty would not that he had downloaded from the have been possible without the extensive computer many years beforehand. email correspondence that took place Although we do not specifically decide between Harrison and the undercover this issue, neither are we particularly federal agent. The communications began troubled by the prospect.

8 when Harrison resp ond ed to an designating it as a “public” notice. Other advertisement on the Internet announcing definitions of notice indicate that it may the availability of videotapes containing m e a n m e r e l y “ i n f o rm a t i o n ” o r child pornography. Harrison’s response to “[I]ntelligence by whatever means the government agent’s advertisement was com mu nica ted.” B LACK’S L AW to indicate his interest in the videotapes, D ICTIONARY 1061 (6th ed. 1990). As a and to tell him in the process of bartering result, all that these definitions make clear that he had “a lot of pics on all ages from is that the issue can not be decided through 5 to 17 mostly hardcore.” The government a battle of the dictionaries, and we must argues this response is sufficient to look to the purpose and structure of the constitute “notice . . . of the material” sentencing guidelines for aid. under § 2G2.2(b)(5). We agree. The purpose behind the child It is not disputed that Harrison pornography sente ncing guidelines transmitted a description of his supports a broad definition of the term pornog raphy collection using his “notice.” The guidelines recognize the computer, and this transmission is part and enhanced threat posed by the Internet, parcel of the resulting transportation of the which greatly increases the ease with specified pornographic materials through which child pornography may be traded. the mail. The only question is whether a This ease is heightened by an offender’s message to one person constitutes ability to find a suitable partner in a child “notice,” or whether the term comprehends pornography “chat room,” with whom the information posted to a wider audience, as offender may then trade anonymous emails Harrison contends. The guidelines offer in order to establish terms for the sale or little direct help on this question, as they barter of explicit materials. This method of do not define what constitutes a “notice.” trafficking eliminates the need for traditional forms of “notice and Harrison cites to dictionaries for the advertisement” directed toward large proposition that a notice is an numbers of people at random. announcement, and an announcement is a “public statement or notice.” Appellant’s Commenting on this method of Reply Brief at 7 (citing to B LACK’S L AW communication, the Fourth Circuit Court D ICTIONARY (7th ed. 1999) and of Appeals found that “the very nature of W EBSTER’ S I I N E W R I V E R SIDE the Internet provides an ‘ominous method’ U NIVERSITY D ICTIONARY (1984)). On its for anonymous predatory criminal face, these definitions are counterintuitive, conduct.” See Dotson, 324 F.3d at 260 since if the meaning of “notice” (quoting Richardson, 238 F.3d at 842). comprehended that it was “public,” it Because the sentencing guidelines are would not be necessary to modify the clearly aimed at targeting this sort of definition of “announcement” by “ominous” conduct with enhanced

9 punishment, it makes sense to define Harrison also used a computer to transmit “notice” in a way that will encompass the “notice or advertisement of the material.” savvy and discreet trader in child pornography, who is able to avoid the _____________________ more dangerous route of p ublic advertisement that would expose his scheme to an unselect audience.

In fact, the language of § 2G2.2(b)(5) contemplates this broader definition of “notice,” by contrasting it with an “advertisement.” If “notice” is interpreted to mean an announcement to the general public, it leaves very little useful work for the word “advertisement,” which is itself defined as “a public notice.” See W EBSTER’S N INTH N EW C OLLEGIATE D ICTIONARY 59 (1988). We assume that by including both terms, the drafters meant there to be a difference between them – “advertisement” implicates announcement to a wider audience, while “notice” may simply mean the communication of information to another party. As a result, we hold that by sending an email telling the undercover agent that he possessed a variety of pornographic “pics,” Harrison used his computer to transmit a “notice” of child pornography, as contemplated under § 2G2.2(b)(5).

IV.

For the reasons set forth above, we find that the District Court properly applied the two-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(5), because “a computer was used for the transmission of the material” that Harrison later mailed to the undercover agent, and because